It is likely, perhaps inevitable, that hateful and violent messages carried over the airwaves and the Internet will someday, somewhere, be responsible for acts of violence. This is simply a statement of probability; it is not an excuse for violence. Is that probability grounds for restricting such speech? Would restrictions on speech advocating violence or showing how to engage in violent acts be acceptable under the First Amendment? — Cass Sunstein (1995)
He is the author of Democracy and the Problem of Free Speech (1995) and Why Societies Need Dissent (2005) in addition to several scholarly articles on subjects such as “The Future of Free Speech” (2002), “The First Amendment in Cyberspace” (1995), “Half-Truths of the First Amendment” (1993), “Free Speech Now” (1992,) “Low Value Speech Revisited” (1988), and “Pornography and the First Amendment” (1986).” And in 2014 he wrote an op-ed for The New Republic expressing reservations about New York Times Co. v. Sullivan (1964). Now he has his analytical sights set on Justice Holmes’s clear and present danger test.
Revisit the Clear & Present Danger Test?
“The Intensifying focus on terrorism, and on Islamic State in particular, poses a fresh challenge to the greatest American contribution to the theory and practice of free speech: the clear and present danger test. In both the United States and Europe, it’s worth asking whether that test may be ripe for reconsideration. . . .”
“As the Court ruled in 1925, there would be no protection of speech whose ‘natural tendency and probable effect was to bring about the substantive evil which the legislative body might prevent.; Under this test, of course, terrorist recruitment activity would not be protected.”
“As late as 1951, the Supreme Court allowed regulation of speech even when the danger was neither clear nor present. In Dennis v. United States, the Court upheld a conviction of people trying to organize the Communist Party to overthrow the U.S. government. . . .”
Rejecting the Clear & Present Danger Test
“One of the greatest and most influential judges in U.S. history, with the unlikely name of Learned Hand, also rejected the clear and present danger test. He believed that the free speech principle didn’t protect explicit or direct incitement to violence, even if no harm was imminent. If you’re merely agitating for change, the government cannot proceed against you, but if you’re expressly inciting people to commit murder you aren’t protected by the Constitution. . . .”
“True, there may be value in even the most extreme and hateful forms of speech: At the very least, people can learn what other people believe. But it’s fair to ask whether that benefit might be dwarfed by the cost, if those forms of speech create a genuine risk of large numbers of deaths. Hand himself argued that his narrow definition of incitement avoids subjectivity and overreach, and that it can’t be abused by the government to silence dissenters and unpopular causes. . .”
Proposed New Test
“To minimize the danger to free speech, it might be best to combine Hand’s approach with a form of balancing: If (and only if) people are explicitly inciting violence, perhaps their speech doesn’t deserve protection when (and only when) it produces a genuine risk to public safety, whether imminent or not. That approach would essentially retain the high level of protection that is now given to political speech and dissent of all kinds. . . .”
→ Note: Some of the ideas mentioned above were discussed earlier in Professor Sunstein’s book Laws of Fear: Beyond the Precautionary Principle (2005) pp. 219-223 and in his 1995 American Prospect essay titled “Is Violent Speech a Right?“
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→ See also Ronald Collins, “Can We Tolerate Tolerance?,” Concurring Opinions, November 2, 2015
Forthcoming Book on the Press, the Supreme Court & Sedition Act of 1798
- Wendell Bird, Press and Speech Under Assault: The Early Supreme Court Justices, the Sedition Act of 1798, and the Campaign against Dissent (Oxford University Press, February 1, 2016)
Wendell Bird is a practicing lawyer who in 2012 received a PhD in legal history from Oxford University. He has been a visiting scholar at Emory University School of Law (2012 to present). His doctoral thesis has now evolved into a forthcoming book to be released this February. Here is a blurb from his publisher:
The early Supreme Court justices wrestled with how much press and speech is protected by freedoms of press and speech, before and under the First Amendment, and with whether the Sedition Act of 1798 violated those freedoms. This book discusses the twelve Supreme Court justices before John Marshall, their views of liberties of press and speech, and the Sedition Act prosecutions over which some of them presided.
The book begins with the views of the pre-Marshall justices about freedoms of press and speech, before the struggle over the Sedition Act. It finds that their understanding was strikingly more expansive than the narrow definition of Sir William Blackstone, which is usually assumed to have dominated the period. Not one justice of the Supreme Court adopted that narrow definition before 1798, and all expressed strong commitments to those freedoms.
The book then discusses the views of the early Supreme Court justices about freedoms of press and speech during the national controversy over the Sedition Act of 1798 and its constitutionality. It finds that, though several of the justices presided over Sedition Act trials, the early justices divided almost evenly over that issue with an unrecognized half opposing its constitutionality, rather than unanimously supporting the Act as is generally assumed. The book similarly reassesses the Federalist party itself, and finds that an unrecognized minority also challenged the constitutionality of the Sedition Act and the narrow Blackstone approach during 1798-1801, and that an unrecognized minority of the other states did as well in considering the Virginia and Kentucky Resolutions.
The book summarizes the recognized fourteen prosecutions of newspaper editors and other opposition members under the Sedition Act of 1798. It sheds new light on the recognized cases by identifying and confirming twenty-two additional Sedition Act prosecutions.
At each of these steps, this book challenges conventional views in existing histories of the early republic and of the early Supreme Court justices.
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→ See also Mary M. Cronin, An Indispensable Liberty: The Fight for Free Speech in Nineteenth-Century America (Southern Illinois University Press, March 29, 2016)
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